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Full text of "Skeete v. Jolyn Jewellery Limited, Board of Inquiry, June 1980 BOI 112"

IN THE MATTER OF THE ONTARIO HUMAN RIGHTS 
CODE R.S.O. 1970, CHAPTER 318, AS AMENDED 



AND IN THE MATTER OF the complaints made by 
Mr. Randolph Skeete and Mrs. May Samuel, of 
Toronto, Ontario, alleging discrimination 
in employment by Jolyn Jewellery Limited, 
100 Wildcat Road, Downsview, Ontario, and by 
Mrs. Barbara Bather son, c/o Jolyn Jewellery 
Limited 



Board of Inquiry 



D.A. Soberman 



Appearances : 



Mr. Sydney L. Goldenberg 



Counsel for the Ontario 
Human Rights Commission 



and the Complainants, Mr. 



Randolph Skeete and Mrs. 
May Samuel 



Mr. John Weingust 



Counsel for Jolyn Jewellery 
Limited and Mrs. Barbara 
Batherson 



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This enquiry is concerned with the complaints of 

Mr. Randolph Skeete and Mrs. May Samuel against Jolyn 

Jewellery Limited, and of Mr. Skeete against Mrs. Barbara 

Batherson, comptroller of Jolyn Jewellery Limited, alleging 

that the company discriminated against them, and Mrs. 

Batherson discriminated against Mr. Skeete in violation of 

section 4, subsection 1(b) and (g) of the Ontario Human Rights 

Code, R.S.O. 1970, c. 318 as amended, by mistreating and 

eventually dismissing them from employment because of their 

race, colour or place of origin. 

The facts concerning the two complaints are closely 

related, but Mrs. Samuel's employment ended ten days after Mr. 
Skeete 1 s. I shall set out the facts in Mr. Skeete ' s complaint 
first, and refer to them while adding the extra facts relating 
solely to the complaint of Mrs. Samuel afterwards. 

At the outset, it should be noted that the facts in 
question took place over a period from February 1976 to May 
1978, some 28 months, ending about 17 months before the hearing 
was held. As a result many witnesses had to rely on their 
recollection of distant events, with little or no written 
evidence to refresh their memories. I found the witnesses 
co-operative and sincere, doing their best to recall exactly 
what had occurred. Nevertheless, there were wide divergences 
among them in their recollection of certain important events, 
requiring me to make findings of fact that necessarily 
contradict the testimony of certain persons while agreeing 
substantially with others. These findings should not be 



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construed as in any way questioning the integrity of those 
witnesses whose version of events has been rejected. Rather 
it demonstrates, if further demonstration be needed, the 
fallibility of human memory after such a lengthy passage of 
time . 

THE FACTS IN MR. SKEETE ' S COMPLAINT 

Mr. Skeete is a Canadian citizen, aged 35, married 
with three children. He was born and educated in Guyana 
where he received training in electrical and mechanical 
maintenance, and in telephone installation and repairs. After 
receiving a certificate and working for the Telephone Company 
of Guyana, he moved to the United States. He worked for two 
years in Hartford, Connecticut as a technician and undertook 
further studies there in air conditioning and refrigeration. 
He came to Canada in 1972 and received training in computer 
operations and programming at the Control Data Institute in 
Willowdale, Ontario. Subsequently, he worked for three years 
at the Canadian National Institute for the Blind in Toronto 
as a computer operator on a Honeywell 58, LOSS-2 computer, 
physically the same machine as that at Jolyn Jewellery. He 
then worked for about three months at the Canadian Imperial 
Bank of Commerce in Toronto. 

Some time in February 1976, while working at the 
bank, Mr. Skeete answered a newspaper ad for an experienced 
Honeywell 58 Computer operator. The ad had been placed in 
the newspaper by Mr. Lawrie Reis, carrying on business as a 
computer consultant under the name of Systems Design Group. 



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At the time Mr. Reis was advising Jolyn Jewellery in its 
computer operations. Mr. Skeete was interviewed by Mr. 
Reis, who was sufficiently satisfied with his qualifications 
and knowledge of the computer to introduce him to Mr. Joe 
Eisen, President of Jolyn Jewellery. 

At that time the manufacturing business of Jolyn was 
expanding rapidly. The company had outgrown its simpler system 
of accounting and inventory control, and on the advice of Mr. 
Reis had acquired a Honeywell 58 Computer. Apparently, the 
problems in adapting its former system to a new computerized 
system turned out to be much more severe than the company had 
anticipated. It desperately needed employees experienced in 
computing, and it was for this reason Mr. Reis had advertised. 

Mr. Eisen persuaded Mr. Skeete to start work part- 
time on a temporary basis almost at once. After three weeks 
Mr. Skeete was invited by Mr. Eisen to join Jolyn as a regular 
full-time employee. At that time Mr. Eisen explained that 
Jolyn did not pay overtime to its office staff, although they 
were expected to work overtime on some occasions. Instead, 
Jolyn would pay an end-of-year bonus to employees, based on 
their extra efforts and performance during the year. Thus, in 
March 1976, Mr. Skeete joined Jolyn as supervisor of computer 
operations. Mr. Skeete was responsible directly to Mr. Eisen. 

There seems to be general agreement in the testimony 
of all the witnesses that Jolyn' s business continued to grow, 
that the business needed an efficient computer operation for 
its accounting, billing and inventory control and that the 
computing system continued to cause problems and stress in the 



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office during the first year of Mr. Skeete's employment . 
However, there is no evidence that during the remainder of 
1976 the company's officers complained about, or were 
dissatisfied with Mr. Skeete's performance. In fact, in 
early December Mr. Eisen provided Mr. Skeete with a very 
favourable letter of reference to enable Mr. Skeete to make 
a bank loan. 

At the end of the year, Mr. Skeete received a bonus 
of $1,000, a sum which he considered inadequate in view of 
the extra time and effort he believed he had put into his job. 
He told Mr. Eisen that he was dissatisfied, but was informed 
that the company was "going through a critical time" and that 
he would do better the following year. There is a substantial 
difference of opinion about the amount of overtime worked by 
Mr. Skeete, he claiming to have worked many extra hours 
including week-ends, and witnesses for Jolyn claiming that 
overtime work occurred only occasionally. 

Mr. Skeete gave evidence about an incident that 
occurred either late in 1976 or early in 1977, and that seemed 
to create in Mr. Skeete's mind a belief that Mrs. Barbara 
Batherson, then working in the collection of accounts receivable 
department, had exhibited prejudice against black people. 
According to Mr. Skeete, a black employee, Glenda Lewis reported 
to him in the presence of Mrs. Samuel, the other complainant, 
that, "During the course of a conversation with Mrs. Batherson, 
Mrs. Batherson told her that when she gets into power she is 
going to get rid of all the blacks in the office". 

Mrs. Samuel's version was somewhat different. She 



5 



stated, " [Glenda Lewis] ... said 'I don't think Barbara 
likes blacks', or something like that, because she is 
planning to get rid of all of us. Something like that. I 
cannot remember the exact words." Thus Mrs. Samuel did not 
allege, even indirectly through Miss Lewis, that Mrs. 
Batherson referred expressly to black people. 

Mr. Skeete stated that he heard corroboration of 
Miss Lewis's allegation from Mrs. Sophie Konjevic, but he 
did not attempt to quote her words. However, Mrs. Samuel did 
comment on Mrs. Konjevic *s statement. Mrs. Samuel stated, 
"I thought it was a joke because she [Mrs. Konjevic] is always 
joking. Sophie said that. 'My friend says when she gets in 
power, she's going to get rid of all of you', and 'all of you'. 
It was just Randy [Skeete] and myself in the room. She didn't 
say black or white or what, she said all of you, but she 
couldn't be speaking to the wall, because there were only two 
people there, which was Randy and myself." Mrs. Samuel 
repeated several times that she thought it was a joke, a big 
joke . 

Miss Lewis did not appear as a witness but Mrs. 
Konjevic did give evidence. Although she appeared as a 
complainant's witness, counsel questioned her very closely as 
if he were cross-examining her. She denied ever hearing Mrs. 
Batherson making any statement similar to that reported by 
Mr. Skeete or Mrs. Samuel. She further denied making any 
comment jokingly or otherwise about the subject because she 
did not think it "funny in the least". Mrs. Batherson, in 
her own testimony, vigorously denied ever making the alleged 



statement. 

The incident occurred about three years before the 
hearing and there is a direct conflict of testimony. Miss 
Lewis, who is alleged to have made the most explicit 
statement was not before us. We are here dealing with 
hearsay through an intermediary who has not appeared before 
us. In these circumstances I do not give any credence to 
Mrs. Batherson's actually have made the alleged statement. 
However, it does seem that Mr. Skeete honestly believed 
that Mrs. Batherson made such a statement. Thus, Mr. Skeete 
at an early stage in his relations with Mrs. Batherson became 
suspicious, if not convinced, that Mrs. Batherson harboured 
a prejudice against black people. 

Early in 1977, Mr. Skeete said he was very tired 
from working under heavy pressure and requested two weeks' 
vacation with pay. Ordinarily all employees received two 
weeks' vacation with pay only when the plant closed in June for 
a two-week period. Therefore, Mr. Skeete 's special request was 
for an additional two weeks. Mr. Eisen agreed to the request, 
but a few days before Mr. Skeete was to leave, Mr. Eisen appears 
to have changed his mind and informed Mr. Skeete that he would 
not be paid during the time off, because of a report received 
from Mrs. Batherson. Mr. Skeete was not told what the report 
said. 

According to Mr. Skeete, computer operations were 
improving and were going quite well in the spring of 1977, but 
there were still serious problems in developing programming 
for the system, and in generating certain statements and reports 



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which the firm required. There was friction between Mr. 
Skeete and Mr. Reis because Mr. Reis kept demanding computer 
time to work on programs during the day when Mr. Skeete was 
busy with his day's tasks. Mr. Eisen's testimony confirms 
that this problem caused continuing friction. 

In May 1977, Mrs. Batherson claimed that Mr. Skeete 
had made a fairly serious error with respect to charging taxes 
on an assortment of goods. As a result the government appeared 
to have been overpaid. Mr. Skeete denied that he was 
responsibile for the mistake, and in a meeting with the vice- 
president, Mr. Goldfarb, and Mrs. Batherson the following day, 
it seems that Mr. Skeete was vindicated; Mr. Goldfarb stated 
that he did not think Mr. Skeete was to blame. According to 
Mr. Skeete, Mrs. Batherson became very angry and "stormed out 
of the room and slammed the door". 

Within a few days, Mr. Eisen telephoned Mr. Skeete 
and requested that the two of them meet with Mrs. Batherson 
at a nearby restaurant. At the meeting, Mr. Eisen said he 
had heard that Mr. Skeete had uptset Mrs. Batherson and he 
would not allow that to happen. Accordingly, Mr. Skeete was 
to be relieved ot supervisory responsibilities and would just 
operate the machine. Mrs. Batherson was to be the new 
supervisor of the office. Mr. Eisen would not allow Mr. 
Skeete to tell his side of the story. From that time onward, 
there seemed to be increasing friction in the office, not 
only between Mrs. Batherson and Mr. Skeete but between each of 
them and others as well. In particular, according to Mr. 
Skeete, Mrs. Batherson would demand reports that Mr. Skeete 



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could not possibly produce with the then state of the programs. 

According to Mr. Skeete, his relations with Mr. 
Eisen had always been good. After the meeting of May 25, when 
Mr. Eisen had removed Mr. Skeete from his supervisory 
responsibilities, Mr. Eisen remained friendly except when Mrs. 
Batherson was around. At those times he would refrain from 
speaking to Mr. Skeete at all. Despite these problems, Mr. 
Skeete continued in his job under the supervision of Mrs. 
Batherson. 

In November 1977, Mr. Skeete reported to Mrs. Batherson, 
who by then had the title of comptroller, that he had received 
a better job offer and was going to resign. She was surprised 
and offered to try to persuade Mr. Eisen to raise his salary 
to keep him. His prospective new job was to have paid about 
$20 per week more. Mrs. Batherson said she would try to get 
him $40 more from Jolyn. It should be noted that Mrs. 
Batherson, despite her poor relations with Mr. Skeete, did not 
use the opportunity to get rid of him, but for the good of the 
Company tried to persuade him to stay. Mr. Eisen himself, then 
offered an extra $20 per week and said he would try to make 
up a greater sum in the bonus at the end of the year. Mr. 
Skeete accepted the offer and stayed on. However, he again 
received a $1,000 bonus. 

Mr. Eisen was away at the time the bonus was received 
and apparently he was very busy over the following few months. 
Mr. Skeete did not discuss his 1977 bonus until the subject 
was brought up by Mrs. Batherson in April 1978, when she asked 
him about it; she seemed to suggest that he deserved more. 



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Mr. Skeete asked if she would broach the matter with Mr. Eisen 
and Mr. Goldfarb, and she agreed to do so. Some time later 
she reported that the two senior officers refused to change 
the amount of Mr. Skeete* s bonus and that he would have to 
wait until the end of the year again. 

During the winter and early spring of 1978, according 
to Mr. Skeete, his relations with the senior officers of the 
firm remained good. However, there was one serious incident 
between himself and Mrs. May Samuel on the one side and Mrs. 
Batherson on the other. The exact time of the incident was 
not clearly established but it appears to have been some time 
in the early spring. Mrs. Batherson came into the computing 
room and asked the two to work overtime in an ill-tempered 
manner. When Mrs. Samuel refused, Mrs. Batherson became 
impatient, and according to Mr. Skeete she said: "When you 
black people achieve things you don't want to do any extra 
work... You and you will have to work overtime or else." Mr. 
Skeete was sufficiently upset that he went directly to Mr. 
Eisen to complain, Mr. Eisen tried to make little of the 
incident, and in his own testimony had no recollection of it. 

In her testimony Mrs. Samuel, who was present when 
Mr. Skeete reported his version of the incident, gave a 
slightly different account. She stated, "[Mrs. Batherson]... 
came in the room and said, 'You and you have to work overtime 
this afternoon.' And I stood there. I was astonished, you 
know. I didn't know what to say and then, you know, she stood 
there and after she said something about colour and I can't 
recall the exact words because she murmured. She didn't say it 



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aloud, she murmured that part." 

Mrs. Samuel also stated she believed the incident 
actually occurred a year earlier. This seems highly unlikely 
since at that time Mrs. Batherson was not yet supervisor 
over Mr. Skeete. In cross-examination, Mrs. Samuel admitted 
she was very angry over the incident at the time and could not 
remember exactly what was said but repeated that Mrs. Batherson 
"Said 'coloured' something, but I really didn't pay too much 
attention. I was really angry... I can't remember her exact 
words... She murmured, I don't want to lie." In her testimony, 
Mrs. Batherson emphatically denied making any such statement 
using the word black or coloured. 

The testimony of Mr. Skeete and Mrs. Samuel is 
consistent in suggesting that Mrs. Batherson was in an irritabl 
mood and seemed rather overbearing. All three parties recall 
that Mrs. Samuel refused to work overtime and the two women 
agree that in a later interview between them Mrs. Batherson 
said that Mrs. Samuel need not work overtime if she did not 
want to do so. I think all three witnesses gave their honest 
recollections of the incident which occurred almost two years 
before the hearing. On balance, I am inclined to believe the 
complainants, that Mrs. Batherson probably did mutter some 
reference to 'coloured people' after the refusal of her demand. 
It remains a serious incident but it happened some months 
before the crucial events leading to the firing of the 
complainants in separate incidents. 

Finally, on the morning of May 15, 1978, Mr. Skeete 
was called into Mrs. Batherson' s office and informed that his 



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hours would be cut back because of lack of work. Mr. Skeete 
objected, saying that he could not see how operations could 
continue at all without an operator. He then went to see Mr. 
Goldfarb who claimed to know nothing of the decision and said 
he would look into it. At 5 p.m. Mr. Skeete was called back 
into Mrs. Batherson's office and was told he had been 
dismissed with two weeks' pay in lieu of notice. When he 
asked why, he claims she replied he had said "something bad" 
about her, but would not disclose anything else. Mr. Skeete 
collected his belongings and left. 

With the exception of the two incidents of alleged 
racial comments by Mrs. Batherson, the parties are in general 
agreement about the facts as related above. However, in the 
view of the respondent there are additional facts that place 
the events in a different light. First, the respondent 
acknowledges that Mr. Skeete is a competent and generally 
reliable computer operator, but claims that he frequently has 
problems in personal relations with fellow employees. Before 
coming to Jolyn he was fired by the Canadian Institute for 
the Blind after working for that organization for three years, 
because of personality clashes with both his superior and a 
junior programmer working under him. He sued in County Court 
for wrongful dismissal and his action was dismissed. In any 
event, there is no doubt that from a very early date he 
complained about Mrs. Batherson to Mr. Eisen. 

When in May 1977, Mrs. Batherson was effectively made 
his superior, both his evidence and that of Mrs. Batherson 
suggest they had disagreements on numerous occasions, that 



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they got along very poorly and that Mr. Skeete resented her. 
In addition, he has stated that he believed she was 
prejudiced against blacks. Mr. Skeete gave evidence of a 
number of incidents of friction. However, with the 
exception of the incidents already described, they relate to 
administrative error and misunderstanding that disclose no 
evidence of racial prejudice. For instance, Mr. Skeete 
dwelled upon a break-down of the air conditioning system for 
a period of several days, a rather serious problem for 
computing equipment. Mr. Skeete interpreted the delays in 
repair to be a means of making him uncomfortable, at the risk 
of the computing equipment breaking down as well. In my 
opinion, there was no basis for Mr. Skeete' s view. 

In addition, some testimony was given, not directly 
involving the complaints, suggesting that black employees 
were treated less well than white employees with regard to 
sick leave and maternity leave. However, none of these 
incidents were more than vague hearsay, unsubstantiated 
either by the parties directly affected or by documentary 
evidence of the leave arrangements themselves. In my opinion, 
these incidents are more easily explained by the generally 
strained personal relations which seemed to persist in the 
Jolyn offices and do not demonstrate discriminatory practices. 

From the evidence of Mr. Lawrie Reis, who continued 
as a computer consultant to Jolyn, from the evidence of Mrs. 
Batherson and several other employees, it appears that the 
Jolyn management perceived Mr. Skeete as an increasingly 
restive and unhappy employee, who might well leave at the 



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first good job opportunity. But he was very important to 
Jolyn, because he was the only trained computer operator 
on staff. In addition, he seemed to keep a great deal of 
essential information in his head instead of keeping 
detailed written records. He had changed a number of 
operating procedures from what they had been when he first 
joined Jolyn (according to Mr. Skeete , to improve operations), 
and Mr. Reis did not understand them fully. The company 
feared that if Mr. Skeete left without warning, their computer 
operation would come to a halt and it would be both costly 
and time-consuming to unravel the puzzle and to get back to 
full operations. Mr. Skeete had already stated he intended 
to leave on at least one occasion, (in November 1977, some 
six months earlier) and in the view of management they felt 
justified in their concern. 

Accordingly, in the first week in May 1978 they 
hired Mrs. Evanne Hock, a computer operator with over six 
years' experience on a Honeywell 58 computer. They had two 
purposes in mind: Jolyn needed to start planning for 
upgrading its computer facilities still further and would 
need additional staff; at the same time they hoped to train 
a "back-up" for Mr. Skeete, some one who could keep the 
system running in the event that he should be ill or leave 
the firm. 

In the weeks before May 15, 1978, the officers of 
the firm, encouraged by Mr. Reis, whose relations with Mr. 
Skeete had continued to deteriorate, became increasingly 
worried about their dependence on Mr. Skeete. Mr. Reis was suf- 
ficiently worried about a sudden departure by him that several 



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weeks before May 15, he copied many of the files stored on 
the Jolyn computer and removed them from the office as a 
precauation. 

By May 15, work had dropped off significantly at 
Jolyn and a decision was made to lay off 40 to 45 employees 
for an undetermined period. Mrs. Bather son informed Mr. 
Skeete that he might be put on short time while sufficient 
work accumulated to operate the computer. Mr. Skeete 
objected to this procedure at the time and according to his 
own evidence as confirmed by Mrs. Batherson said "he could 
not understand how they could do without him during normal 
business hours." However, the complainants introduced no 
evidence to show that it was impractical to put computer 
operations on reduced time along with the rest of the office 
staff . 

There is no reason not to accept the evidence that 
the planned lay-offs and short-time arrangements were 
intended to be implemented by Jolyn, that Mr. Skeete objected 
strongly and complained subsequently to Mr. Goldfarb, and at 
that point Mrs. Batherson made the decision to recommend 
firing Mr. Skeete. She consulted with Mr. Goldfarb in person 
and with Mr. Eisen by telephone. In view of Mr. Reis's fears 
about the computer programs it was decided to give him two 
weeks' pay in lieu of notice and have him leave at once. 
Since, as we shall see, Mrs. Hock was not yet sufficiently 
familiar with Jolyn' s operations to run the computer, the 
dismissal of Mr. Skeete was ill-timed. 



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SUMMARY OF THE FACTS AND CONCLUSION 

It may be that much of the conflict between Mr. 
Skeete and Mrs. Batherson was her fault because she was a 
difficult person to get along with. It may be that the 
Jolyn office was not well run, that there was much tension 
and conflict in which Mr. Skeete became enmeshed, and that 
Jolyn was itself responsibile for generating the resentment 
and lack of cooperation it found in him. All these things 
might be relevant, if we were here concerned with a civil 
action for wrongful dismissal. But in these proceedings we 
are concerned only with the question of conduct contrary to 
the Human Rights Code. For the purposes of allegation under 
the code there seem to be three relevant incidents, all 
against a background of strained relations not shown to be 
related in any way to racial discrimination. 

First, there is the alleged comment reported by Miss 
Glenda Jackson, of Mrs. Batherson saying she would get rid of 
all blacks in the office. Mrs. Samuel did not recall the use 
of the word blacks. The other two witnesses, including the 
witness called by counsel for the complainants, denied that 
the incident had taken place. The central evidence was 
hearsay, from a witness who did not appear before the 
proceeding. (It seems she is no longer in Canada but there 
was no certainty about her whereabouts). Thus, while Mr. 
Skeete believed Mrs. Batherson had made a prejudiced statement, 
neither Jolyn Jewellers nor Mrs. Batherson can be found 
responsible for that belief. 



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Second, there is the overtime incident early in 1978. 
Mrs. Batherson appears to have been in an irritable mood, 
and there was tension in the computer room. After Mrs. 
Samuel's refusal to work overtime, Mrs. Batherson did mutter 
something about black or coloured people not wanting to 
achieve. This remark must be regarded as a racial slur and a 
serious incident. The question remains whether it is 
sufficient evidence of prejudice in the mind of Mrs. Batherson 
to play a material role in the third incident, the firing of 
Mr. Skeete on May 15, 1978. 

I have reviewed the evidence of all witnesses with 
respect to the working environment in the Jolyn office 
generally and especially from May 1977, when Mr. Skeete was 
relieved of his supervisory responsibility, until May 15, 1978. 
I am satisfied that there was a steady increase in tension 
and deterioration in relations between Mr. Skeete on the one 
hand and Mrs. Batherson and Mr. Reis on the other. I am also 
satisfied that Mr. Skeete contributed to that tension himself 
in that he was not a relaxed and easy-going person and has 
some history of conflict with fellow workers. Whether the 
fears and suspicions of the officers of Jolyn were completely 
justified in relation to a claim for wrongful dismissal, I 
am satisfied that they honestly believe that Mr. Skeete might 
well leave them without warning. He had talked about leaving 
on more than one occasion, and on his own testimony actually 
nee( j e( 3 to be persuaded to remain at Jolyn in November 1977. 
He had changed operating procedures and did not keep detailed 
written records of the changes. Without in any way imputing 



17 



his motives in this conduct, in the atmosphere of conflict, 
especially with Mr. Reis, it was not unreasonable to have 
the concerns and to take the precautions that were taken. 
The copying of computing information by Mr. Reis is 
consistent with these fears. I believe these fears were 
dominant in the minds of the officers of Jolyn and decisive 
on May 15, 1978, when they fired Mr. Skeete. I do not 
believe that the one incident of racial prejudice with respect 
to overtime, serious though any such incident must be, played 
a material role in the decision to fire Mr. Skeete. 

If there were any evidence that Jolyn had a history 
of employing very few people from racial minorities - if there 
were any previous incidents of discrimination at Jolyn - it 
might be necessary to take a more serious view of the one 
incident. But the evidence shows that Jolyn has employed a 
very high percentage of immigrant workers from many parts of 
the world of various colour and racial origin. Even 
discounting evidence of present employees because of loyalty 
to the firm or fear of reprisal, a number of employees 
expressed in very positive terms their conviction that the 
firm did not practise any form of discrimination and indeed 
condemned it. In these circumstances, one racial remark in 
much broader and more pervasive context of stressful relations 
confirmed by both parties, does not appear material. Of 
course, it is impossible to peer into the subconscious of a 
person's mind, but when all the external indicia of the 
evidence before the hearing are weighed, I do not find it 
possible to conclude that one incident can condemn Mrs. 



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Batherson. Indeed, if the effect of one such incident were 
to taint the firing with racial discrimination in this case, 
it would seem virtually impossible ever to let Mr. Skeete 
go without such condemnation following almost inevitably. 
It does not seem to me that our Human Rights Code, either in 
letter or spirit exacts such a high standard from one fault. 

The leading case on this subject appears to be 
Regina v. Bushnell Communications Ltd., et al. (1974) 4 O.R. 
(2d) 288. In that case the accused corporation was charged 
under s. 110(3) of the Canada Labour Code, R.S.C. 1970, 
c. L-l, making it an offence to "refuse... to continue to 
employ any person .. .because the person is a member of a trade 
union" . There was evidence of acrimony and disagreement 
among a number of employees and especially with the 
subsequently dismissed employee, whose dismissal led to the 
charge being laid. Indeed it would not have been surprising 
had the company decided to dismiss him at some point. 
However, the day before the dismissal, a letter was delivered 
by a union representative to the executive vice-president 
of the company, advising him that the employee was a member 
of the union. In other words, the notification of union 
membership was followed the next day by dismissal. The court 
of appeal, in upholding the conviction of the employer 
stated (at p. 290), "...union membership must be a proximate 
cause for dismissal, but it may be present with other proximate 
causes." [Underlining, mine.] I construe these words to mean 
that union membership must have played a material role, 
though not the sole or even dominant role in the decision to 



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dismiss. Given the sequence of events in the Bushnell case 
it is not all surprising that union membership was so viewed 
by the court. 

Another way of stating the test might be to ask, 
"Would the employee have been dismissed at that time, had the 
impugned proximate cause not been present?" In the Bushnell 
case, it is hard to imagine the dismissal occurring just by 
coincidence the day after notice was received of the employee's 
membership in the union. 

The same questions asked in the present case would be, 
"Was Mr. Skeete's race or colour a proximate cause in his 
dismissal?" and, "Would Mr. Skeete have been dismissed at that 
time, had he been a white employee?" In my view, the answer 
to the first question is "no", that Mr. Skeete's colour was 
not a proximate cause. Rather, it was strained personal 
relations unrelated to race and to which both employee and 
employer had contributed, expressed resentment and puzzling 
conduct in the operating procedures of the computer by Mr. 
Skeete and genuine fear, whether justified or not, on the part 
of the employer that he might leave the company "in the lurch", 
brought to a head by the confrontation of May 15, that led to 
the dismissal. It follows that Mr. Skeete, would very likely 
have been dismissed if he had been a white person in the same 
circumstances and on the same occasion. I do no believe that 
Mr. Skeete being a black man played any role in the decision 
to dismiss. 

) Accordingly, I do not find that Jolyn Jewellery 

Limited, or Mrs. Barbara Batherson violated section 4, 



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p. 



20 



subsection 1(b) and (g) of the Ontario Human Rights Code 
in dismissing Mr. Randolph Skeete. 

THE FACTS IN MRS ♦ SAMUEL'S COMPLAINT 

Mrs. Samuel is 35 years old, born in Jamaica where 
she received her training as a key punch operator and came 
to Canada in 1968. She is married and has two children. 
Before coming to Jolyn she worked as an operator at the 
Ontario Ministry of Health and for a firm known as Staff 
Builders Employment Agency. In August 1976, she was hired 
by Mr. Skeete while he was supervisor of computer operations. 
Mrs. Samuel was considered a reliable, experienced key punch 
operator by Mr. Skeete as well as by his superiors. She seems 
to have got along well with everyone including Mr. Skeete. 
Before her last few days at Jolyn, there was only one reported 
incident involving Mrs. Samuel in which there was any friction - 
the incident in which Mrs. Batherson requested that Mr. Skeete 
and Mrs. Samuel work overtime, as described in detail in the 
facts of Mr. Skeete' s complaint. The crucial part of the events 
concerning Mrs. Samuel occurred just after Mr. Skeete 's 
dismissal . 

After Mr. Skeete was dismissed, May 15, 1978, Mrs. 
Samuel found that her workload became very heavy. According to 
Mrs. Samuel, Mrs. Hock, who had been hired as a "back-up" 
operator for Mr. Skeete, was unable to run the computer. Mrs. 
Hock had been with Jolyn less than two weeks. Although she 
was an experienced operator on a Honeywell 58, Mrs. Hock stated 
that it would take some time to become familiar with the 



21 



programs and procedures. She said that she first needed to 
become familiar both with Jolyn's business and with how the 
computer is used to assist the business. In particular, 
Mrs. Hock - whose evidence was supported by that of Mr. Reis, 
the computer consultant who had originally recommended hiring 
Mr. Skeete - claimed that there was very little documentation 
about Jolyn computer operations available to her. Mr. Skeete 
seems to have kept much of the day-to-day information in his 
head. Mrs. Hock stated it was essential to have the 
documentation and to have a deck of key-punched cards called 
"execute cards", to run the computer successfully. I shall 
return to the question of the cards, but for the moment, it is 
important to note that in Mrs. Samuel's view, Mrs. Hock 
seemed not to know how to operate the computer. Mrs. Samuel, 
being a competent key punch operator who had helped Mr. Skeete 
with computer operations from time to time, had also learned 
a good deal about operating the computer itself during her more 
than two years at Jolyn. She knew how to start up the 
computer and did so the morning of May 16, after Mr. Skeete 
had been dismissed. To her it seemed that Mrs. Hock was 
rather helpless and ill-prepared. For the next few days she 
performed a number of computer operations and did her key 
punching as well. She was aware that Mr. Skeete had been 
dismissed because he had told her about it by telephone the 
evening he had lost his job. According to both Mrs. Hock and 
Mrs. Batherson, Mrs. Samuel worked very hard and was 
particularly helpful in the days following Mr. Skeete' s 
dismissal . 



Mrs. Hock stated that she had great difficulty 
getting the computer to operate because on the morning after 
Mr. Skeete was dismissed, although she found a fairly large 
number of cards, they were in disarray - all out of order - 
in a tray by the computer. She could not make any sense of 
them. At that point, Mrs. Samuel volunteered the information 
that she had a set of execute cards at home and would bring 
them to work the next day . 

There is substantial disagreement among the witnesses 
about the number and significance of this set of execute cards 
that were in Mrs. Samuel's possession at her home when Mr. Skeete 
was dismissed. At a date that was not established by either side, 
Mrs. Samuel had keypunched a set of cards related to computer 
operations. Mrs. Samuel said she produced these cards on Mr. 
Skeete *s instructions, about thirty or so of them, that could be 
used if the computer "goes down in the middle of an invoice run". 
She took these cards home with her, for reasons that were never 
explained and there is no doubt that taking them home was a 
very unusual thing to do. These cards were the property of 
Jolyn and related to the computer operations of Jolyn. They were 
not the personal property of Mrs. Samuel although it seems that 
she believed them to be of value only to herself. 

According to Mrs. Hock, Mrs. Samuel brought in a carton 
of 300 or so cards, not thirty. Largely through the efforts of 
Mrs. Samuel who was familiar with the cards, the computer 
was started up and operated over the next few days. Mrs. Hock, 
with the assistance of Mr. Reis, sorted the cards 



IS 



23 



which were already in reasonably good order, and placed them 
in appropriate plastic pouches in a large binder specially 
designed for key punch cards. From there they could be 
removed in appropriate groups and used in the computer 
operations. Mrs. Hock stated that these cards were used in 
most of the regular day-to-day operations of the computer. 
Mr. Reis's testimony is in general agreement on this point, 
although he did not say, nor was he asked by counsel, how 
many cards there were. 

We therefore have Mrs. Samuel's evidence asserting 
that there were very few execute cards for the limited purpose 
of restarting the computer when it "goes down". Mrs. Hock, 
on the other hand claims that Mrs. Samuel brought some 300 
cards to the office, cards which could be used for many or 
most of the daily procedures. Mrs. Samuel must be mistaken to 
some extent, because it does not seem consistent that the cards 
would have been the subject of discussion and a substantial 
benefit in the computer operations if there were only thirty 
of them for the limited purposes described by her. We are also 
left with the unanswered question of why she took the cards 
home (where they could serve no useful purpose) rather than 
leave them in the office near her desk or key-punch machine. 
The only reasonable explanation seems to be for safekeeping 
because of some concern for their disappearance if they were 
left at work. Even if Mrs. Samuel's perception of the cards 
was that they were of little value, she nevertheless 
volunteered the information that she had them at home and did 
bring them into the office the following day, surely in the 



24 



belief that they would be of some assistance. It also seems 
clear that Mrs. Hock and Mr. Reis believed that the cards 
were important in keeping the computer running . The 
approximate number of cards is of less consequence than the 
clear evidence that they were a significant help in running 
the computer . 

The events appear to have occurred as follows: Mr. 
Skeete was dismissed Monday afternoon, May 15, 1978. Tuesday 
morning, Mrs. Hock was asked to operate the computer and found 
the execute cards in disarray and was unable to work with them. 
Mrs. Samuel then stated she had some cards at home and brought 
them to the office Wednesday morning, May 17. She did much 
of the work needed to keep the computer operating, as well as 
any needed key punching that day and on Thursday, May 18. 

Sometime Friday morning, May 19, Mrs. Samuel received 
a telephone call from an anonymous person, a woman who, 
according to Mrs. Samuel, said, "You are so stupid there. They 
are using you. Imagine, they are paying Evanna [Hock] $250 
and you have to show her everything and you are doing all the 
work." Mrs. Samuel asked who the caller was, but the caller 
refused to identify herself. The telephone call greatly upset 
Mrs. Samuel who earned $210 per week. A little later she 
confronted Mrs. Hock and asked her whether it was true that 
Mrs. Hock was earning $250. Mrs. Hock denies disclosing what 
amount she earned while Mrs. Samuel claims that Mrs. Hock 
confirmed the figure. However, Mrs. Hock's reaction must 
have confirmed to Mrs. Samuel's that her belief was correct. 
A striking example of conflicting evidence on this matter 



25 



occurred in the earlier testimony of Mr. Skeete. When 
asked by his counsel whether he had any knowledge of Mrs. 
Hock's salary, he replied, "I overheard her telling Mrs. 
May Samuel she was making $250 a week." Yet it is clear 
that Mrs. Samuel did not know Mrs. Hock's salary until the 
anonymous telephone call received after Mr. Skeete was 
dismissed. Both Mrs. Hock and Mrs. Batherson confirm Mrs. 
Samuel's reaction on Friday, May 19. Without in any way 
questioning the integrity of the witness, I think this 
contradiction between the evidence of Mr. Skeete and Mrs. 
Samuel, both complainant's in this hearing, emphasizes, despite 
the fallibility of memory after such a long time, how easy it 
is for parties to delude themselves that they have remembered 
events with apparent accuracy, later proved to be false. 

Mrs. Samuel went to Mrs. Batherson' s office about 
3:00 p.m. to complain that she was training Mrs. Hock but 
earning less money. She thought it was unfair and she was 
very upset about it. Mrs. Batherson at first, refused to 
discuss Mrs. Hock's salary saying it was a matter between 
Mrs. Hock and the company, but eventually she tried to 
re-assure Mrs. Samuel, saying that she herself could not 
grant a $40 increase in salary but that she would speak to Mr. 
Eisen about getting an increase of perhaps $25. She suggested 
that Mrs. Samuel talk the matter over with her husband on the 
long week-end and would feel better on the following Tuesday. 
Both parties are in general agreement about this conversation. 
However, at that point it appears that Mrs. Samuel made up 
her mind that regardless of the pay issue the task of helping 



26 



run the computer and acting as key-punch operator was too 
demanding and stressful. She decided in her own mind that 
she would be content to remain as just a key-punch operator 
and would refuse to help with the computer operation. Before 
leaving work at the end of the day she went to the binder 
containing the execute cards, removed the ones she had brought 
from home and threw them into a garbage bin. No one else in 
the office was aware that Mrs. Samuel had done this. 

On the following Tuesday morning when Mrs. Hock went 
to the binder she saw at once that a number of the cards v/ere 
missing. According to Mrs. Hock, about half the cards were 
missing, while Mrs. Samuel claims that only the thirty cards 
she had brought back to Jolyn were missing. At that point, 
Mrs. Samuel spoke up and said there was no point in looking 
for the cards because she had taken them and was not qoing to 
return them. Mrs. Samuel's evidence does not contradict Mrs. 
Hock on this point, and it is a very important point. For 
if the cards taken by Mrs. Samuel the preceding Friday had 
only been a small group of back-up cards in case the computer 
should go down - a group of cards in the back of the binder 
as Mrs. Samuel had described them - then Mrs. Hock would not 
have noticed immediately that they were missing and there 
would have been no reason for Mrs. Samuel to volunteer the 
information that she had taken the missing cards. In my 
opinion, the missing cards must have been of greater importance 
not only in Mrs. Hock's mind but also in Mrs. Samuel's mind at 
the time, or Mrs. Samuel would not have volunteered the 
information. While I have no doubt that Mrs. Samuel is an 



I 



27 



honest witness, on balance it seems much more likely that 
Mrs. Hock's version of what happened - that a number of 
important execute cards (whether more or less than half is 
not significant), were missing - is more accurate than Mrs. 
Samuel's version. 

Mrs. Samuel did not disclose that she had thrown 
the cards away. Mrs. Hock then went to Mrs. Batherson's 
office to tell her what had happened. According to both 
Mrs. Hock and Mrs. Bather son, the latter then approached Mrs. 
Samuel to try to persuade her to return the cards, but Mrs. 
Samuel refused. Mrs. Samuel does not believe that she spoke 
to Mrs. Batherson on the Tuesday, but it is probable that 
some such conversation took place. In any event, without 
the cards, and with Mrs. Samuel refusing to do any work other 
than key-punching, computer operations were severely curtailed 
for the day. Mr. Goldfarb, the vice-president of the company 
at the time, was out of town, and Mrs. Batherson delayed 
taking any action before his return the following day, 
Wednesday, May 24. 

Wednesday morning, when Mr. Goldfarb had returned to 
the office, Mrs. Samuel was called to a meeting with him and 
Mrs. Batherson. This meeting was reviewed extensively in 
examination-in-chief and cross-examination of both Mrs. Samuel 
and Mrs. Batherson, and there is general agreement about what 
occurred until the last few moments of the meeting. Mrs. 
Samuel was asked why she had taken the cards and she stated 
she believed they were her own property, and of no value to 
the company. When Mr. Goldfarb insisted that they were 



4 



« 



28 



company property, she then disclosed that she no longer had 
the cards but had thrown them away. It appears that Mr. 
Goldfarb, Mrs. Batherson and Mrs. Samuel became increasingly 
angry and hostile from that point onward. Whether Mr. 
Goldfarb or Mrs. Batherson first suggested calling the police 
is not certain, but at the end of the conversation it was 
made clear to Mrs. Samuel that the police were going to be 
called to report that she had either stolen or destroyed 
company property . 

Mr. Goldfarb did not appear as a witness, but Mrs. 
Batherson stated that when he said he would call the police, 
"[Mrs. Samuel] ... got upset and she stormed out of his office." 
In cross-examination, Mrs. Batherson added, "She left his 
office shouting all the way, and I heard a commotion in the 
office..." However, Mrs. Samuel's version of the end of the 
meeting is quite different. She stated that when Mr. Goldfarb 
indicated that the police would be called, she said, "Very 
well, I am going to call the Department of Labour . " At that 
point she left the office. When asked by her counsel, "Were 
you swearing or raising your voice or making any noise at this 
time?" she responded, "I was just murmuring to myself..." 
To the question, "Were you raising your voice?" she replied, 
"Not to the extreme." And to, "Were you speaking softly?" 
she said, "Not very softly, no, you could have heard... Some of 
them [the people in the office] could have heard. Like for 
instance the receptionist ... but not everybody." Mrs. Samuel 
rather reluctantly recalled that she was not entirely calm and 
composed on leaving Mr. Goldfarb' s office. 



<m 



Mrs. Hock gave evidence similar to that of Mrs. 
Batherson, to the effect that Mrs. Samuel on coming out, or 
shortly after coming out, of Mr. Goldfarb's office, was 
shouting abuse and calling Mrs. Batherson names as she 
approached the computer room. Mrs. Betty Reid, who was cross- 
examined extensively by counsel for the Commission, also heard 
Mrs. Samuel come from Mr. Goldfarb's office shouting abuse at 
Mrs. Batherson. Mrs. Joan Wiederhold, whose desk was next, to 
that of Mrs. Reid (both of whom could see Mrs. Samuel within 
a few feet of her leaving Mr. Goldfarb's office) testified to 
the same effect. 

There is no doubt that Mrs. Samuel and Mrs. Batherson 
were both very upset at the time, and either could have got the 
sequence of events confused. However, three witnesses 
corroborate Mrs. Batherson' s statement that Mrs. Samuel "stormed 
out of the office", and I find that this version is on balance 
the more likely one. 

At that point, Mrs. Samuel fetched her purse from the 
computer room and went to Mrs. Wiederhold' s desk to telephone 
the Human Rights Commission. There was some uncertainty about 
the order of events, but the above sequence seems probable. 
After making her telephone call Mrs. Samuel left her Jolyn 
"I.D." card with Mrs. Wiederhold. It is also agreed that 
right after the telephone call, whether before or after 
depositing the "I.D." card is not established, Mrs. Samuel 
began to shout again and left the building. Mrs. Samuel states 
that the reason she started to shout was that Mrs. Batherson 
passed by closely and made a remark about coloured people. In 



Mrs. Samuel's words, "When she passed and she passed very 
close to me and she said, 'You coloured people', something 
as she was walking, so I didn't catch the second part of 
it and I said 'You stupid bitch, what did you say?', because 
I was really angry and I shouted it. Everybody in the 
office could hear. I was really angry." 

Mrs. Batherson denied coming out of Mr. Goldfarb's 
office until Mrs. Samuel had left the building, and stated 
that she had no further contact with Mrs. Samuel until the 
latter telephoned some time later from the offices of the 
Human Rights Commission. Mrs. Hock stated that Mrs. 
Batherson was not in the office when Mrs. Samuel was shouting 
either before or after the telephone call. Under intensive 
cross-examination, both Mrs. Reid and Mrs. Wiederhold stated 
that Mrs. Batherson did not pass by Mrs. Samuel immediately 
after she made her telephone call to the Human Rights 
Commission. There was some uncertainty in both witnesses 
about the details, because they both said they were very 
embarrassed by the shouting and profanity and tried to avert 
their eyes. They acknowledged that details of these events 
were distant and they did not recollect them exactly. 
Nevertheless, so soon after Mrs. Samuel had shouted abuse 
at Mrs. Batherson, it would be remarkable that her personal 
appearance in the office, close to Mrs. Samuel, would go 
entirely unnoticed by all three of these witnesses. Mrs. 
Samuel herself only recollects the words "you coloured people" 
and stated that she did not hear the context in which the 
words may have been used - if indeed they were used at all. 



< 



« 



31 



She readily admitted she was very angry and upset at the 
time. In my opinion, the weight of evidence does not 
establish that Mrs. Batherson did pass by Mrs. Samuel 
immediately after the telephone call. 

It should be noted that the words "you coloured 
people" are not in themselves perjorative but must take 
their meaning from the context. Thus, even if they were 
used it is possible that they were part of a defensive 
or worried statement, after the telephone call made to the 
Human Rights Commission, such as "We treat you coloured 
people the same as everyone else," or "I have nothing 
against you coloured people." There is no evidence by the 
complainant that puts these words in a perjorative or 
discriminatory context, and I believe it would be unwarranted 
to make such an inference in the circumstances. In any 
event, on this confused and rather slender evidence it does 
not appear justified to find that a racial slur against Mrs. 
Samuel was uttered by Mrs. Batherson, though no doubt Mrs. 
Samuel believes it was made. I find that Mrs. Batherson did 
not make such a remark. 

Mrs. Samuel left Jolyn at 10:00 a.m. and went to the 
offices of the Human Rights Commission, where she found that 
she would have to wait for an interview. About noon, she 
telephoned Mrs. Batherson to say she would be late in returning, 
apparently believing she still had her job. Mrs. Batherson 
stated that Mrs. Samuel herself raised the question of whether 
she still had a job, suggesting there was doubt in Mrs. Samuel's 
own mind. Although little turns on which is the more accurate 



32 



recollection of the event, it does seem rather unrealistic 
for Mrs. Samuel, after the accusation of theft and order to 
call the police, the violent shouting in the office and 
leaving without consent of the employer, to assume that she 
still had a job awaiting her at Jolyn. Mrs. Batherson' s 
version of the telephone call appears more accurate than that 
of Mrs. Samuel. It would seem reasonable, after all that 
occurred, to ask about one's status at work. Both agree that 
Mrs. Batherson then informed Mrs. Samuel that she was 
dismissed, and they discussed arrangements for her to pick up 
her cheque for any wages owing. The reason given for the 
dismissal was "mischief", that is, the destruction of company 
property in the form of the execute cards. Mrs. Samuel was 
subsequently charged with a criminal offence, but the charge 
was dismissed. 

SUMMARY OF THE FACTS AND CONCLUSION 

Mrs. Samuel is a competent and diligent key punch 
operator, highly regarded by the senior officers at Jolyn. 
She did have one serious disagreement with Mrs. Batherson at 
the time of the overtime incident involving as well Mr. Skeete. 
This incident took place two or three months before the events 
of late May 1978 and no doubt left some background of 
suspicion and hostility towards Mrs. Batherson because of her 
reference to coloured people and her perceived overbearing 
manner at that time. There was also a state of continuing 
stress and friction in the office between Mr. Skeete and Mrs. 
Batherson possibly involving others as well. Nevertheless, 



r 



33 



Mrs. Samuel was very willing to be helpful when the company 
needed her services after Mr. Skeete was dismissed. 

After Mr. Skeete' s departure, Mrs. Samuel found 
herself under much increased pressure with Mrs. Hock's 
dependence upon her in running the computer. There is no 
doubt that the mysterious telephone call from an unknown 
person was the catalyst that precipitated the unfortunate 
events which followed. Whoever may have instigated the 
telephone call, there is not the slightest indication that any 
officer of Jolyn was implicated. Indeed, in the circumstances 
after Mr. Skeete leaving, Jolyn badly needed Mrs. Samuel's 
continued help and had no reason to precipitate a crisis. 
Although one may sympathize with Mrs. Samuel's viewpoint that 
Mrs. Hock could not handle the job and her bitterness at being 
paid less, Mrs. Samuel's perception did not justify her 
destroying company property. Even so, Mrs. Batherson 
hesitated to dismiss her after learning that Mrs. Samuel had 
taken the cards, perhaps in the hope of recovering the execute 
cards and in the hope of restoring relations with a needed 
employee. However, it is hardly surprising that the company 
after learning that the cards had been destroyed and after 
Mrs. Samuel's outburst of shouting and abuse, and finally 
leaving the premises to file a complaint against it, chose to 
dismiss her for cause. Whether the company was justified in 
dismissing for cause in law, is not the issue before us. The 
only issue is whether the company's officers thought they 
were dismissing Mrs. Samuel because of her conduct without 
regard to her race or colour. 



r 



34 



I have found one piece of evidence, the overtime 

incident some months before, where a racial remark was very 

likely made by Mrs. Batherson. The only other allegation 

of a racial remark, was that made after the events had 

occurred which led to Mrs. Samuel's dismissal. Even if Mrs. 

Samuel's evidence of this second remark were accepted, 

substantial doubt would remain whether prejudicial views 

played any material role in the decision to dismiss. As it 

is, I have found on the evidence that Mrs. Batherson did not 

make a second remark about coloured people, and even on Mrs. 
testimony 

Samuel's own/there is no evidence of the words used in a 
perjorative sense. Thus, while there is evidence of very 
strained personal relations there is no evidence to establish 
discriminatory conduct by Mrs. Batherson. On the other hand, 
there is strong evidence that Mrs. Samuel was the author of 
her own dismissal, albeit as the consequence of a nefarious 
and anonymous telephone call that occurred during 
particularly stressful working conditions. 

Referring again to the Bushnell case, I do not find 
that Mrs. Samuel's colour was a proximate cause in her 
dismissal. There is no basis to doubt that a white employee 
who had thrown away a number of execute cards in similar 
circumstances, who shouted abuse of a member of management 
and left the premises of the employer to lay a complaint, 
would not also have been dismissed. Accordingly, I do not 
find that Jolyn Jewellery Limited violated section 4, 
subsection 1(b) and (g) of the Ontario Human Rights Code when 
it dismissed Mrs. Samuel. 



35 



In accordance with section 14c of the Ontario 
Human Rights Code I have decided that neither respondent 
has contravened the Code. 

Dated at xKingston, Ontario, this 23rd day of 
June, 1980. 




D.A. Soberman 
Board of Inquiry 



f 



(